By Michael E. Clark and Amanda L. Bassen
In yet another modification by the Department of Justice (“DOJ”) to Obama administration policies, on July 19, 2017, Attorney General Jefferson Sessions announced a policy reviving the criticized civil asset forfeiture practice that allows the DOJ to forfeit assets seized by state or local law enforcement. The Attorney General’s order (the “Order”) authorizes the federal forfeiture of property seized under state law by state and local law enforcement agencies when alleged criminal conduct purportedly violates federal law (referred to by the DOJ as “federal adoption”). The Order allows for the seizure of cash and other personal property from individuals suspected of crimes, but not yet convicted or charged.
The DOJ labeled its expansion of the federal government’s forfeiture practice as one of its most effective tools in reducing crime. Because, however, federal adoption applies to individuals suspected of criminal conduct, it gives rise to concerns that innocent people will be deprived of their due process rights. In an effort to quiet critics, the DOJ simultaneously announced policy guidance in connection with the Order, which implemented safeguards designed to ensure sufficient evidence of criminal activity prior to federal adoption. The safeguards also include requiring local police departments to provide details to the DOJ about the probable cause justifying each seizure in an “adoption form”, notice to property owners within 45 days of seizure, enhanced asset forfeiture training to state and local enforcement, and a supervisory review process. It remains to be seen whether documentation by local law enforcement of probable cause will be a sufficient protection, given the self-interest of such agencies in sharing in the forfeited assets. Additional safeguards were also implemented for adoptions involving cash amounts of $10,000 or less.
In recent years, there has been widespread bipartisan consensus that the forfeiture laws may go too far in impinging on civil liberties. In 2015, in response to an uproar over the abuse of police power, and coming off the heels of federal seizures in 2014 of approximately $4.5 billion from people not yet charged with crimes, former Attorney General Eric H. Holder, Jr. implemented a series of reforms, including the bar of the use of federal law by state and local law enforcement to seize personal property and funds absent pending criminal charges or warrants. Several states, including Illinois, California, Connecticut, Michigan, Maryland, Nebraska and New Mexico have also passed legislation to implement protections for individuals still cloaked with the presumption of innocence, from pre-conviction and pre-charge civil asset forfeiture. New Mexico, for example, requires a criminal conviction prior to the seizure of property. One of the major concerns in response to the Order is the impact federal adoption will have on these state laws, which may provide state and local law enforcement with a pathway to circumvent these statewide protections.
The DOJ announcement has received a negative nationwide response from both Democratic and Republican lawmakers who see the policy as a threat to the due process and private property rights of innocent people, and was described by the ACLU as “tantamount to policing for profit.” Expect an increase to civil asset forfeiture challenges by both private practitioners and not for profit advocacy and civil rights groups in the upcoming months. With constitutional challenges likely, review by the Supreme Court of federal civil asset forfeiture policies very well may be in the not too distant future.